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Report No. 103

2.2 Illustrative cases (Carriers).-

By way of illustration of the problem outlined above, a few cases relating to carriers may be cited. The Madras High Court1 has held: (i) A common carrier is a person who professes himself ready to carry goods for everybody. He is considered to be in the position of an insurer with regard to the goods entrusted to him and so his liability is higher. (ii) But when it is expressly stipulated between the parties that a carrier is not a common carrier that conclusively shows that the carrier is not liable as a common carrier. And even assuming that the carrier would be deemed to be a common carrier or held liable as such, it was open to such a carrier to contract himself out of the liability as common carrier or fix the limit of liability.

2.3. The Assam High Court2 has held that the liability of the internal carrier by air, which is not governed by the Indian Carriage by Air Act, 1934, or by the Carriers Act, 1865, is governed by the English Common Law and not by the Indian Contract Act. Under the English Common Law, the carrier's liability is not that of a bailee only but that of an insurer of goods, so that the carrier is bound to account for loss or damage caused to the goods delivered to it for carriage, provided the loss or damage was not due to an act of God or King's enemies or to some inherent vice in the thing itself. The Common Law, however, allows the carrier almost an equal freedom to limit its liability by any contract with the consignor. In such a case, its liability would depend upon the terms of the contract or the conditions under which the carrier accepted delivery of the goods for carriage.

The terms could be very far-reaching and indeed the party could claim exemption even if the loss was caused on account of negligence or misconduct of its servants or even if the loss or damage was caused by any other circumstances whatsoever, in consideration of a higher or lower amount of freight charged. Howsoever amazing a contract of this kind may appear to be yet that seems to be the state of law as recognised by the Common Law of England and adopted by Courts in India. The clause in a contract of carriage by air giving complete immunity to the carrier from liability could not be impugned on the ground that it was hit by section 23, Contract Act, because, according to the High Court, the Contract Act had no application to the case nor could it be said to be opposed to public policy.

1. Indian Airlines Corporation v. Jothaji Maniram, AIR 1959 Mad 285.

2. Rukmanand v. Airways (India) Ltd., AIR 1960 Assam 71.

2.4. The Calcutta High Court1 had to deal with a case of a passenger travelling by air inside India. The plane crashed causing death of the passenger, and his widow sued for damages. The air ticket exempted the carrier from liability on account of negligence of the carrier or of the pilot or of other staff. There was evidence that the conditions exempting the carrier were duly brought to the notice of the passenger and that he had every opportunity to know them. The High Court held: "The Privy Council2 held that the obligation imposed by law on common carriers in India is not founded upon contract, but on the exercise of public employment for reward, that is, by the Common Law of England governing rights and liabilities of such Common carriers.

It is not affected by the Indian Contract Act of 1872. Therefore, no question of testing the validity of the exemption clause with reference to section 23 of the Indian Contract Act at all arises. It is a case, where the carrier said that he was prepared to take the passenger by air provided the passenger exempted him from liability due to negligence. The exemption clause in the contract was good and valid and was a complete bar to the plaintiff's claim. The Indian Carriage by Air Act, 1934, was not made applicable because the requisite notification applying the Act had not been issued."

1. Indian Airlines Corporation v. Madhuri Chaudhury, AIR 1965 Cal 252.

2. Irrawadi Flotilla Co. v. Bugwan Dass, 1981 LR 18 IA 121.



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